Ban on 'upskirting' passes in House and Senate

In the wake of a controversial ruling on Wednesday by the state's highest court, the Legislature on Thursday passed a bill that would ban secretly taking photos up women's skirts in public places.

By Matt MurphyState House News Service

BOSTON — The House and Senate moved quickly on Thursday to outlaw “upskirting” a day after the state’s Supreme Judicial Court said perpetrators caught taking photos or video underneath a person’s clothes without their knowledge could not be prosecuted under current law.

House Speaker Robert DeLeo and Senate President Therese Murray fast-tracked the bill, which was written and approved by both branches and sent to the governor’s desk for his signature with unusual haste following Wednesday’s court ruling.

“I’m happy with the speed. I’m very unhappy that we had to do this today, that this is not illegal activity already,” Murray said after the Senate voted 39-0 to approve the bill. “And as someone just mentioned to me, yes, we’ve taken care of videos and smartphones and whatever other cameras, but we didn’t talk about yet are drones. Ok, so now the drone issue will come up in the future also about privacy issues.”

The House, which was not meeting in formal session Thursday, approved the bill during a lightly attended informal session with no objection, and both branches attached emergency language to the measure to allow it to take effect immediately after the governor signs it. A spokeswoman for Gov. Deval Patrick said he would sign the bill, an action that could take place as soon as Friday.

“I don’t know if we can move much faster than this here in the Legislature, but again I think once the decision was received by all of us last night I think that there was a feeling that something had to be done and done quickly,” DeLeo said.

The SJC on Wednesday threw out the state's case against a man accused of secretly taking photographs up women's skirts on the MBTA, arguing the women did not have a legal expectation of privacy on the trolley and were not partially nude as defined under current law. The court found that the state's law against secretly photographing or videotaping a person who is nude or partially nude was written in a way to apply to "peeping toms," but does not cover "upskirting."

Murray was furious with the decision, and DeLeo said he thought the law on the books should have been sufficient to cover “upskirting.” The speaker said he was confident the new bill would pass “constitutional muster” if challenged in the courts.

“It is sexual harassment. It’s an assault on another person, whether it’s a child or an adult. It’s an assault. And women and children should be able to go to public places without feeling that they are not protected by the law, so this will at least bring us up to speed now, but what technology comes in the future we’re going to have to stay on top of,” Murray said.

The bill bans the covert photographing, videotaping or electronic surveillance of someone’s “sexual or intimate parts,” regardless of whether those parts are naked or covered by clothing or undergarments, in situations when a reasonable person would believe that their sexual or other intimate parts would not be visible to the public.

Anyone caught taking such photographs of an adult could be charged with a misdemeanor and sentenced to up to 2 ½ years in jail or fined up to $5,000. Photographing a child under this statute would be treated as a felony and carry a penalty of up to five years in state prison, and or a fine of not more than $10,000.

The bill sent to Patrick for his review also outlaws the dissemination of “upskirt” photos, which Murray said get posted to “really nasty websites.”

The bills adds the photographing or recording under or around a person’s clothing without their knowledge to the state’s current dissemination laws that carry a possible state prison sentence of up to five years, and creates a new crime of dissemination of such photos of children with a maximum jail sentence of up to 2 ½ years or a state prison sentence of up to 10 years.

Sen. Jennifer Flanagan, a Leominster Democrat, said it was imperative that the Legislature take the action it did, especially as lawmakers urge citizens to use public transportation.

“For the women and children across the Commonwealth of Massachusetts they should not have to worry each and every day they walk out of their houses whether or not they’re going to be victimized by the reprehensible acts of others taking inappropriate pictures in our public places,” Flanagan said.

Sen. Mark Montigny, a New Bedford Democrat, said he was pleased he would be able to go home and tell his constituents that the Legislature had taken action to address the issue so quickly, but cautioned that lawmakers must remain vigilant.

“As we speak the technology is out in front of us. It is very difficult to keep up with the technology. Ironically, it’s the beauty and the beast of technology because many of us learned about the outrage with the decision and the comments of some of the justices through social media,” Montigny said.

Senate Minority Leader Bruce Tarr, a Gloucester Republican, applauded the move to close what he described as an “untenable gap” in the state’s decency laws, but suggested lawmakers should consider moving with an equal sense of urgency to address another SJC ruling that that life sentences without parole are unconstitutional for youthful offenders convicted of murder.

Tarr and Sen. Barry Finegold (D-Andover) have filed legislation that would require juveniles convicted of first degree murder to serve a minimum of 35 years in prison before becoming parole eligible.